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2014 DIGILAW 969 (PNJ)

Param Singh v. Surinder Kaur

2014-06-30

RAKESH KUMAR JAIN

body2014
JUDGMENT Mr. Rakesh Kumar Jain, J.: - The plaintiff is in appeal against the judgment and decree of the appellate Court by which the judgment and decree of the trial Court has been reversed. The case of the plaintiff is that the defendant agreed to sell 5 marla of land by way of written agreement dated 1.9.2003 for a sum of Rs.20,000/-. He received the entire money in advance but the execution and registration of sale deed was postponed which was to take effect after the compromise in the pending litigation in respect of the land in dispute. According to the plaintiff, when he came to know about the settlement in the pending dispute with regard to title of the property, he served a legal notice on 2.1.2004 requesting the defendant to execute the sale deed in terms of the agreement dated 1.9.2003 but he did not respond then the plaintiff served another legal notice dated 25.2.2004 asking the defendant to come present in the office of Sub-Registrar on 5.3.2004. The plaintiff remained present in the office of Sub-Registrar, Dera Bassi on 5.3.2004 but the defendant did not turn up. Plaintiff got his presence marked by getting his affidavit attested from the Sub-Registrar-cum-Executive Magistrate. It is alleged that he is ready and willing to perform his part of the agreement but the defendant has committed the breach. 2. On the other hand, the case of the defendant is that she had never agreed to sell the land in dispute to the plaintiff and denied the receipt of Rs.20,000/- towards sale consideration. It is further alleged that the case regarding mutation of the land was pending before the Revenue Court at Dera Bassi on the basis of a Will but the Revenue Court had sanctioned mutation in favour of natural legal heirs of deceased Surta Singh. The plaintiff had been accompanying the husband of the defendant to the Revenue Court to pursue the said case and obtained the signatures of the defendant and thumb-impression of her husband on the blank stamp papers on the pretext of filing appeal against the order vide which mutation was sanctioned and thus fabricated the agreement while using the said papers. 3. On the pleadings of the parties, following issues were framed: - “1. Whether the defendant entered into an agreement to sell on 1.9.2003 in favour of the plaintiff? OPP. 2. 3. On the pleadings of the parties, following issues were framed: - “1. Whether the defendant entered into an agreement to sell on 1.9.2003 in favour of the plaintiff? OPP. 2. Whether the plaintiff is entitled for possession as prayed for? OPP 3. Whether the plaintiff is entitled for alternative relief i.e. for recovery of Rs.20,000/-? OPD 4. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP 5. Whether the suit of the plaintiff is based on false and fabricated documents? OPD 6. Whether the present suit has been filed only to harass the defendant? OPD 7. Relief.” 4. Both the parties led their respective evidence. The trial Court decreed the suit of the plaintiff for specific performance of agreement dated 1.9.2003 regarding land measuring 5 marlas out of khasra No.81(3-4) of Khewat/Khatoni No.542/848 situated in revenue estate of village Lohgarh, Tehsil Dera Bassi for a consideration of Rs.20,000/-, already paid to the defendant. Aggrieved with the order of the trial Court, defendant filed appeal which has been allowed by the Appellate Court vide its judgment and decree dated 7.1.2013. 5. The plaintiff had come to the Court for performance of the agreement dated 1.9.2003 with a specific averment that Rs.20,000/- had already been paid to the defendant when the agreement Ex.P1 was executed. However, during the course of hearing, he had relied upon another agreement dated 10.7.2000 and stated that the sale consideration was paid to the defendant at the time of execution of agreement dated 10.7.2000. A photocopy of the said agreement was placed on record as Mark ‘A’. The Appellate Court had found that the plaintiff had specifically admitted that no amount was paid to the defendant at the time of execution of agreement Ex.P1 and the marginal witness of both the agreements PW2 Gurmeet Singh had stated that the sale consideration of Rs.20,000/- was paid to the defendant on 1.9.2003 and not on the execution of sale agreement dated 10.7.2000 (Mark ‘A’). The Appellate Court did not rely upon the photocopy of the agreement Mark ‘A’ as the plaintiff did not seek permission of the Court for leading secondary evidence and also found contradiction in the statement of PW2. It was held that no consideration was paid when the agreement Ex.P1 was entered into between the parties, therefore, the said agreement could not have been executed for the purpose of the sale deed. It was held that no consideration was paid when the agreement Ex.P1 was entered into between the parties, therefore, the said agreement could not have been executed for the purpose of the sale deed. 6. Learned counsel for the appellant has contended that agreement Mark ‘A’ was torn off by the defendant and a photocopy thereof has been produced on record which should have been taken into consideration by the Appellate Court since the defendant has not denied her signatures. Thus, it is submitted that there is a complete misreading on the part of the Appellate Court while reversing the judgment and decree of the trial Court and as such the suit of the plaintiff deserves to be decreed. 7. On the other hand, learned counsel for the respondent has submitted that even in the agreement Ex.P1, there is no reference of the previous agreement (Mark ‘A’) as the word used in Ex.P1 is particularly ‘today’ that the land has been sold by the defendant. It is submitted that had it already been sold as projected by the plaintiff, by way of agreement Mark ‘A’, the word ‘today’ would not have been there in the agreement Ex.P1 rather there would have been a reference of the terms and conditions of agreement Mark ‘A’, which is also not there in the plaint and is a subsequent development. The Appellate Court has also not relied upon agreement Mark ‘A’ on the ground that it is not part of the pleadings and thus, the evidence beyond pleadings has rightly been ignored. 8. I have heard both the learned counsel for the parties and perused the record with their able assistance. The controversy involved is in a narrow compass as the plaintiff has filed the suit for performance of the agreement dated 1.9.2003 alleging that defendant had already received Rs.20,000/- towards sale consideration. 8. I have heard both the learned counsel for the parties and perused the record with their able assistance. The controversy involved is in a narrow compass as the plaintiff has filed the suit for performance of the agreement dated 1.9.2003 alleging that defendant had already received Rs.20,000/- towards sale consideration. He has admitted that he had not paid sale consideration to the defendant in terms of the agreement dated 1.9.2003 rather the case set up during the trial and not in the plaint about another agreement dated 10.7.2000 (Mark ‘A’) between the parties and at that time, Rs.20,000/- towards sale consideration was allegedly paid to the defendant and since the sale deed was contingent upon the happening of an event, it could not be executed at that time, and when the defendant became owner, having won the dispute regarding her title, the suit is filed. The subsequent agreement Ex.P1 was executed in which it is mentioned that Rs.20,000/- has already been received by the defendant. However, the plaintiff has not made any reference to the agreement dated 10.7.2000 (Mark ‘A’) in the plaint and the agreement Ex.P1 dated 1.9.2003 also talks of the sale having been made by the defendant from that day as the word used in the agreement is ‘today’. There is another aspect of the matter that had there been an agreement between the parties, as alleged by the plaintiff, in the shape of Mark ‘A’, he would have made a reference in the agreement Ex.P1 itself but its reference is conspicuously absent in the agreement Ex.P1 and the agreement Mark ‘A’ has also not been brought on record in accordance with law as no application for secondary evidence has been filed though it has been alleged that the original agreement Mark ‘A’, which is a photocopy, has been torn off by the defendant. All that has been argued is that the defendant has admitted the signatures but at the same time, the signatures have not been admitted to have been appended on the agreement as alleged by the plaintiff rather the case set up by the defendant is that the signatures have been taken on the blank papers by the plaintiff on the pretext of filing appeal against the order passed by the revenue authority in the case of mutation, which was claimed by the defendant on the basis of Will, sanctioned in favour of the natural heirs of Surta Singh. 9. In view thereof, I do not find any error in the judgment and decree of the Appellate Court while dismissing the suit of the plaintiff for specific performance as there is no question of law much less substantial is involved which goes to the root of the case, which can change the result of the suit. Hence, the present appeal is hereby dismissed. ---------0.B.S.0------------ —————————